Balancing Property Rights and Human Rights in Expropriation

Jeff Waincymer

in Human Rights in International Investment Law and Arbitration

Published in print September 2009 | ISBN: 9780199578184
Published online February 2010 | e-ISBN: 9780191722561 | DOI:

Series: International Economic Law Series

 Balancing Property Rights and Human Rights in Expropriation

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This chapter concentrates on the protection of property rights through expropriation norms and the way the articulation and adjudication of these may impact upon human rights goals. The purpose of this chapter is two-fold: firstly to consider whether anti-expropriation norms are a barrier to human rights promotion through their content, application, or even the regulatory chill effects that might flow from expansive indirect takings norms; and secondly, to consider to what extent the development of comprehensive and balanced tests at the interface of potentially conflicting international governance regimes places great responsibility on adjudicators to expand upon the more open-ended norms that typically arise from treaty negotiations. A subsidiary question is whether the traditionally private field of international arbitration is as well suited to perform this function as a more permanent body such as the Appellate Body of the WTO or a body with broad public international law expertise such as the International Court of Justice.

Keywords: international legal rules; Appellate Body; WTO; international governance regimes; treaty negotiations

Chapter.  16755 words. 

Subjects: Human Rights and Immigration

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